The Khmer Rouge Tribunal: Judgment Without Justice?
Diana Tjoeng looks at the legal challenges faced by the Khmer Rouge Tribunal.
Tragedy as a result of one’s own ideas is like a knife slicing off its own handle.
– Cambodian proverb
When discussing the murderous reign of the Khmer Rouge in Cambodia from 1975 to 1979, this ancient proverb is particularly fitting. Led by Pol Pot, the Democratic Kampuchean regime envisioned a Cambodia unaffected by the past; they brought the nation back to Year Zero and instigated what they considered to be a communist, agrarian utopia. In truth, the Khmer Rouge killed more than 1.7 million of their own people through execution, starvation and overwork.
This year, the Khmer Rouge is finally being put on trial. In March, the Extraordinary Chambers of the Courts of Cambodia, or the Khmer Rouge Tribunal, commenced. One of five indicted was the Director of the infamous Tuol Sleng (S-21) prison, 66-year-old Kaing Guek Eav, commonly known as Comrade Duch. At least 15,000 people were tortured and murdered for political dissent in his prison.
Khmer Rouge officials have not faced their victims until now. Although Pol Pot and his foreign minister Ieng Sary were tried by the newly installed People’s Republic of Kampuchea in 1979, the People’s Revolutionary Tribunal was arguably for show and lasted for only five days. Pol Pot and Ieng Sary were not present to face the charges or the death sentence handed down for genocide and crimes against humanity. This time, however, victims are able to directly confront their tormentors in court.
While Ieng Sary is scheduled to face the Tribunal, Pol Pot is no longer alive. In 1998, he died under house arrest in the Cambodian jungle while the international community was still debating how and when to try him. There has been much debate over why the United Nations and the Cambodian government have taken so long to see the Khmer Rouge Tribunal come to fruition. The process has been rife with disagreement over the level of Cambodian involvement in legal proceedings and the number of Khmer Rouge officials indicted.
Dr. Milton Osborne, Visiting Fellow at the Lowy Institute for International Policy, says: “The tribunal faces a fundamental problem of believability … observers have reason to ask why it has cast its net in such a limited fashion and after such a long time since the Pol Pot regime was pushed out of Phnom Penh.”
“Dr. Milton Osborne, Visiting Fellow at the Lowy Institute for International Policy, says: ‘The tribunal faces a fundamental problem of believability … observers have reason to ask why it has cast its net in such a limited fashion.’”
“If the hope of many observers was that the tribunal would both provide an answer as to why the Pol Pot regime functioned as it did and lead to the conviction of those responsible for its actions, then it is far from clear that these goals will be achieved. Despite Duch’s readiness to testify in detail to his actions, it is not certain that the other defendants will do so … Given the age and poor health of the other defendants, they may never come to trial. Indeed, the current timetable is [such that] they will not be before the court until next year.”
Unlike similar hybrid tribunals set up by the United Nations in Sierra Leone, the judges of the Khmer Rouge’s Tribunal are mainly Cambodian. In the pre-trial and trial chambers, where charges are laid and cases heard, Cambodian judges occupy three of the five judicial posts and five of the seven positions in the Supreme or Appeals Chambers. However, an international judge will join with the Cambodian judges for a decision to be confirmed. In another unusual move, there are two co-prosecutors: one Cambodian and one foreign.
The high level of Cambodian involvement has been the source of a number of corruption allegations. In 2007, accusations emerged that Cambodian court staffers had to pay kickbacks to the government official who gave them their job. Further allegations of corruption surfaced last July, prompting the United Nations to initiate a review of the tribunal’s ability to withstand scrutiny. In April, the results of this review had still not been released and talks between the United Nations and the Cambodian government had failed to produce an agreed set of ethics monitoring mechanisms.
The corruption allegations have created further controversies for the Tribunal. The United Nations Development Programme has frozen funding from international donors to the Cambodian side of the court over suspicions of inappropriate usage, pushing it to near bankruptcy. This continues despite some nations such as Australia, which granted $USD456,000 last year, calling for their contributions to be released. The defence team of one of the indicted, Nuon Chea, filed a request to the Tribunal’s co-investigating judges to examine the corruption allegations, but the judges denied the request, claiming that probing such allegations was outside their jurisdiction.
Dr Osborne says that the allegations of corruption must be fully investigated.
“If corruption is found to have occurred but no action is taken as a result, this will damage the tribunal’s reputation and so its credibility. I have long argued that both in Cambodia and elsewhere where endemic corruption exists it will only be possible for it to be eliminated … when it is tackled at the highest levels of government. There seems little sign of this happening in Cambodia.”
“Although Pol Pot and his foreign minister Ieng Sary were tried by the newly installed People’s Republic of Kampuchea in 1979, the People’s Revolutionary Tribunal was arguably for show and lasted for only five days.”
In recent years, the Cambodian government has tried to overcome corruption allegations by promoting a new image of accountability. Heng Hok, the Press Secretary for the Royal Cambodian Embassy in Canberra, said the government was “deepening reforms in all sectors” and that the trials were an opportunity “to promote the end of impunity in Cambodian society”. However, Prime Minister Hun Sen has strongly opposed the foreign co-prosecutor’s push to investigate at least six more Khmer Rouge officials.
In an April edition of Cambodia’s leading newspaper, the Phnom Penh Post, Prime Minister Hun Sen opined that pursuing other Khmer Rouge figures would lead to civil unrest.
“I would prefer to see this court fail than for war to come back to Cambodia,” he said. “That is my absolute position … just focus on these few people.”
Prime Minister Hun Sen and other government officials were low-ranking members of the Khmer Rouge. Few professionals with administrative experience meant that when the new People’s Republic of Kampuchea government was installed, there was little choice but to employ officers of the previous regime.
A report compiled in March this year by a leading genocide research centre, the Documentation Centre of Cambodia, found that 57 per cent of the more than 1000 Cambodians surveyed supported the prosecution of up to 10 more Khmer Rouge leaders. However, in former Khmer Rouge areas, low-ranking soldiers fear that if the tribunal expands its caseload, arrests could spread further down the regime hierarchy. Youk Chhang, the Director of the Documentation Centre of Cambodia, says “we need to leave this to judges to decide” and hopes that the tribunal can deliver “a final judgment of what happened under the Khmer Rouge.”
But what of the likely outcome of the Tribunal?
Dr. Osborne says he has little doubt Comrade Duch will be convicted of crimes against humanity.
“If the other defendants remain alive to be brought to trial, I would think it likely that they, too, will be convicted. But it is highly likely that they will seek to argue that they were not prime movers within the regime, and that others, including Norodom Sihanouk [the former King of Cambodia] should be brought before the tribunal.”
As the Cambodian government continues to oppose further prosecutions, however, the likelihood of further individuals being called to account remains doubtful. With the Tribunal’s future also clouded by corruption allegations, justice seems a long way off for the victims.
